RICHARD MILLS, District Judge.
Petitioner James Faulds' Motion to Vacate, Set Aside or Correct Sentence [d/e 1, 1-1] is before the Court.
It is denied.
The following factual background regarding Faulds' criminal case comes from an opinion of the U.S. Court of Appeals for the Seventh Circuit:
On July 16, 2006, while investigating in an undercover capacity crimes of child exploitation, James Mooney, a special agent with U.S. Immigration and Customs Enforcement ("ICE"), logged into an Internet chat room called "aLLgirls." Special Agent ("S.A.") Mooney knew from previous experience that people used that chat room to trade images of preteen females engaged in sexually explicit conduct. When Mooney entered the room, Faulds' computer was already logged onto the same chat room under the screen name "Wscrypt."
S.A. Mooney made a direct, "client-to-client" connection with Faulds' file server, which had 2, 751 files available, consisting of 1.22 gigabytes of images and 34 folders. One of the folders labeled "Mar" contained a six-page listing of images. Mooney knew, also from his previous experience, that "Mar" contained images of child pornography. He downloaded 12 images from the "Mar" folder and a movie from a folder labeled "Girlvids." The "Mar" images depicted a 6- or 7-year-old girl being sexually abused. The movie showed sexual abuse of an 11- or 12-year-old girl.
The software S.A. Mooney was using allowed him to determine the IP address for Wscrypt and the service provider for the account. In response to a subpoena to the service provider, Mooney learned Faulds' name and that he lived in Rankin, Illinois. Mooney, who was stationed in Portland, Oregon, then forwarded the results of his investigation to ICE Special Agent Michael Mitchell in Springfield, Illinois.
On August 18, 2006, S.A. Mitchell and other law enforcement agents in central Illinois executed a search warrant on the home where Faulds was living with his parents. From his bedroom, they seized computers, CDs, and a DVD that contained Faulds' extensive pornography collection, much of which included child pornography. In the course of their search, the officers also spoke with Faulds who admitted that he collected child pornography and shared it with others through filesharing computer software.
From their examination of the material seized from Faulds' bedroom, law enforcement determined that the various items contained a total of 9, 869 pornographic images of children and 719 pornographic movies involving children. The "Mar" folder alone contained more than 300 pornographic pictures of the same 6- or 7- year-old girl. In addition, the 12 images that S.A. Mooney had downloaded from Faulds' server on July 16 were still on Faulds' computer when agents seized it on August 18, 2006.
United States v. Faulds, 612 F.3d 566, 567-68 (7th Cir. 2010).
On January 4, 2007, a grand jury sitting in Urbana, Illinois, returned a two-count indictment against James Faulds, Jr., charging him with both possessing and distributing child pornography. See Indictment [d/e 1], in Case No. 07-cr-20004. The case was assigned to U.S. District Judge Michael P. McCuskey.
Faulds appeared before a magistrate judge, who appointed an assistant federal public defender to represent him, and Faulds was released on bond. See Minute Entry of January 8, 2007, in Case No. 07-cr-20004. Trial was scheduled for May 2007. See Minute Entry of February 23, 2007, in Case No. 07-cr-20004. On March 27, 2007, Faulds appeared before Judge McCuskey, was sworn, and pled guilty to both counts. See Minute Entry of March 27, 2007, in Case No. 07-cr-20004. Bond was revoked and a sentencing hearing was scheduled. See id.
On July 17, 2007, Faulds filed a pro se motion to withdraw his guilty plea. See Pro Se Motion to Withdraw Plea of Guilty [d/e 12], in Case No. 07-cr-20004. The Court allowed the Motion, appointed new counsel under the Criminal Justice Act (CJA), and eventually allowed Faulds to be on bond once again. See Minute Entry of July 20, 2007; Minute Entry of September 19, 2007; Minute Entry of October 17, 2007, in Case No. 07-cr-20004.
The jury trial was scheduled to begin on February 25, 2008, at 9:00 a.m. On that morning, Faulds filed a pro se motion and announced his intention to represent himself. See Minute Entry of February 25, 2008; Pro Se Motion [d/e 47], in Case No. 07-cr-20004. The Court allowed his request to represent himself, but directed CJA counsel to be stand-by counsel for the remainder of the proceedings. See Minute Entry of February 25, 2008, in Case No. 07-cr-20004. The Court warned Faulds of the risks involved in pro se representation in a criminal trial and provided a sheet of guidelines for pro se parties. See Guidelines for Pro Se Parties [d/e 48], in Case No. 07-cr-20004. The jury was selected on the afternoon of February 25, 2013. Opening statements began on the morning of February 27, 2008.
The Court of Appeals has summarized the events of trial as follows:
Over the course of the trial, in addition to the testimony of S.A. Mooney and S.A. Mitchell, the government introduced a number of exhibits, including the images and movie that S.A. Mooney received after remotely accessing Faulds' computer from Portland. Faulds' father testified about his son's computer knowledge and his exclusive Internet access in their home, and a local detective testified about Faulds' admissions about his possession and distribution of child pornography. The computers, CDs, and DVD seized from Faulds' bedroom were also offered and received. The government briefly published to the jury the 12 images and the movie S.A. Mooney received. It also published a few additional images S.A. Mitchell found on Faulds' computers and CDs. Other depictions were described to the jury.
For his defense, Faulds denied that he had made any inculpatory statements to law enforcement and denied knowledge of the child pornography found on his computer. Faulds theorized that someone had accessed his computer remotely, uploaded child pornography to the computer's hard drive, and burned pornographic images to a CD in the computer's CD tray....
Faulds, 612 F.3d at 568 (7th Cir. 2010).
On February 29, 2008, the jury returned verdicts of guilty on both counts. See Jury Verdict [d/e 54], in Case No. 07-cr-20004.
Faulds was remanded to the custody of the Marshal, and stand-by counsel was allowed to file post-trial motions on behalf of Faulds. See Minute Entry of February 29, 2008, in Case No. 07-cr-20004.
Faulds was sentenced on September 8, 2009, to 360 months imprisonment (240 months on Count 1, 120 months on Count 2, to be served consecutively). See Minute Entry of September 8, 2009, in Case No. 07-cr-20004. Faulds' Notice of Appeal was docketed on September 10, 2009. See Notice of Appeal [d/e 100], in Case No. 07-cr-20004.
The Court of Appeals appointed a different lawyer to represent Faulds on appeal. Oral argument was held on April 19, 2010, and the conviction and sentence were affirmed on July 8, 2010. See Mandate [d/e 108], in Case No. 07-cr-20004; United States v. Faulds, 612 F.3d 566 (7th Cir. 2010). The Supreme Court denied Faulds' petition for writ of certiorari on January 10, 2011. See Faulds v. United States, 131 S.Ct. 949 (2011).
The CJA attorney who represented Faulds during pre-trial proceedings and who acted as standby counsel for the remainder of the case will be referred to as "CJA counsel" throughout the remainder of this Opinion. The attorney appointed to represent Faulds on appeal will be referred to as "appellate counsel."
Faulds filed his Motion to Vacate, Set Aside or Correct Sentence [d/e 1, 1-1] on January 24, 2011. The Motion spans 140 pages, and raised thirty grounds for relief. In addition, Faulds filed exhibits [d/e 1-2] covering 52 pages, including an eight-page affidavit.
The Government filed a Response [d/e 12] on May 13, 2011. The Government argued that twenty-three of the thirty grounds raised relate to issues that appellate counsel failed to raise on appeal, and are wholly without merit. The Government argued that the remaining seven claims are also without merit.
Faulds filed a 100-page Reply [d/e 14], accompanied by thirty-six pages of exhibits [d/e 14-1].
In order to establish a Sixth Amendment claim of ineffective assistance of counsel, a petitioner must demonstrate that counsel's performance was deficient and that he was prejudiced as a result. See Strickland v. Washington, 466 U.S. 668 (1984).
In order to demonstrate ineffectiveness, a petitioner "must show that counsel's representation fell below an objective standard of reasonableness." Id. at 687-88.
"Representation of a criminal defendant entails certain basic duties. Counsel's function is to assist the defendant, and hence counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest. From counsel's function as assistant to the defendant derive the overarching duty to advocate the defendant's cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of prosecution." Id. at 688 (citation omitted).
"These basic duties neither exhaustively define the obligations of counsel nor form a checklist for judicial evaluation of attorney performance. In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all of the circumstances.... No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel's conduct or the range of legitimate decisions regarding how best to represent a criminal defendant. Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions." Id. at 689.
"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." Id. (citations and quotation marks omitted).
"The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the [proceedings] cannot be relied on as having produced a just result." Id. at 686.
"The defendant must show that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
"When a defendant challenges a... [sentence]..., the question is whether there is a reasonable probability that, absent the errors, the sentencer... would have concluded that the balance of aggravating and mitigating circumstances did not warrant [the sentence imposed]." Id. at 695.
"Appellate counsel's performance is similarly measured against that of an objectively reasonable attorney. An appellate counsel's performance is deficient if she fails to argue an issue that is both obvious and clearly stronger than the issues raised. However, counsel is not required to raise every nonfrivolous issue on appeal." Brown v. Finnan, 598 F.3d 416, 425 (7th Cir. 2010) (citations omitted).
"To prevail, [a petitioner] must show that there is a reasonable probability that the issue his appellate attorney failed to raise would have altered the outcome of the appeal, had it been raised." Id.
In large measure, Faulds seeks to obtain relief by "recasting" his poor performance at trial as ineffective assistance by either the Public Defender, CJA Counsel, or Appellate Counsel.
Courts generally see past these efforts to "recast" the blame, and reject them. See United States v. Egwaoje, 335 F.3d 579, 587 (7th Cir. 2003); United States v. Windsor, 981 F.3d 943, 947 (7th Cir. 1992).
The Court sees through Faulds' feeble attempt to recast the blame, and rejects it.
The Court will address the grounds for relief raised by Faulds. Some require more analysis than others.
Ground 1-Public Defender and CJA Counsel were ineffective because they failed to interview witnesses who had been named by Faulds
This claim relates to Faulds' issues regarding a network security expert.
This issue is fully addressed in Ground 13.
The Court concludes that this claim is meritless.
Ground 2-Appellate Counsel was ineffective for not appealing the obstruction of justice enhancement
Appellate attorneys are not required to raise every non-frivolous issue on appeal. Brown, 598 F.3d at 425. Appellate counsel have to make strategic decisions regarding which issues to raise on appeal, and are ineffective only when they fail to raise issues that are more obvious and stronger than those raised. Id. To prevail, Faulds would have to show that there is a reasonable probability that the outcome would have been different if the issue had been raised. Id.
Faulds is unable to do so because the enhancement was completely justified.
Ground 3-Appellate Counsel was ineffective on appeal for failing to raise allegations that Judge McCuskey had inappropriate communications with jurors and improperly pressured them to return a swift verdict
Faulds has raised very serious allegations against Judge McCuskey.
They are without any support from the record.
Faulds cites the record twice for instances of alleged misconduct.
The first took place on the first day of trial, after spending nearly three hours waiting for Faulds to arrive and resolving numerous issues, including pro se representation. The jury had not been selected yet, and the venire had been waiting during that time. Judge McCuskey stated the following: "I've got to go to talk to the jurors about last-minute questions. Be in recess for at least 20 minutes." Trial Transcript [d/e 64], in Case No. 07-cr-20004, p. 54.
This was innocuous. It is not uncommon for judges in this district to address potential jurors while they are gathered in the jury assembly room. This is generally used as an opportunity to field any questions about the process, explain a delay and thank them for their patience. Judges sometimes visit the jurors in the jury assembly room when there has been some unexpected problem or a change in circumstances (a case settles or gets pled out at the last minute).
The second instance is even more harmless. Faulds states that the jurors were given the case on a Friday, and alleges that Judge McCuskey threatened the jurors that if they "did not return the verdicts that day they will come back the next day to deliberate more." Motion [d/e 1], p. 16.
This is false. The passage cited by Faulds is from Thursday evening, after the jury had already been excused for the day. See Trial Transcript [d/e 64], in Case No. 07-cr-20004, p. 602. The Court was holding a conference regarding upcoming witnesses and jury instructions outside the presence of the jurors. So Judge McCuskey's statement was not to the jury.
There was no threat that they would have to deliberate on Saturday. Instead, he said that he would suggest that they do so, but that the choice was theirs. See Id. at 626 ("I just want you to know I'm going to suggest that they come back to deliberate on Saturday. They may say, No, Monday.'").
Judge McCuskey explained that the Courthouse would be open on Saturday because he and security personnel would be there to host tours of the building by the Boy Scouts. Id.
Ground 4-Faulds received ineffective assistance of counsel: Public Defender failed to file a motion to suppress statements and CJA Counsel withdrew motion to suppress statements
Faulds claims that his inculpatory statements were not made voluntarily, because the agents came to his work site and ordered him to return home, the agents who interviewed him were very skilled interrogators, and Faulds and his family felt as if they were trapped in their home when the agents were there. In support, Faulds has supplied affidavits from himself, his mother, and sister. See Affidavits [d/e 1-2], pp. 1-11.
Faulds was allowed to drive his own car from his work site back to his house, and was not placed under arrest during his contact with law enforcement.
Any limited detention of Faulds' relatives during the execution of the search warrant would not have been inappropriate. See Michigan v. Summers, 452 U.S. 692 (1981).
In order to have prevailed on the Motion to Suppress, CJA Counsel would have had to demonstrate that Faulds' interaction with law enforcement was not voluntary. An evidentiary hearing would have been held, and Faulds' testimony would have been critical to the success of the Motion to Suppress.
Faulds had already admitted to Judge McCuskey that he had lied under oath during proceedings in this case.
It does not appear that counsel was ineffective regarding the suppression of those statements.
Ground 5-Faulds received ineffective assistance of counsel because Public Defender and CJA Counsel failed to get evidence suppressed, and because Appellate Counsel failed to raise this issue on appeal
Faulds claims that the search was improper, because (1) in applying for the warrant and completing his affidavit, S.A. Mitchell included information received from S.A. Mooney, who was based in Oregon, (2) the search warrant was overly broad in scope,  because the justification for the broad scope came from S.A. Mitchell's general experience with child pornography cases rather than the specifics of this case, (3) that an inventory of items was not prepared, and (4) Faulds was not provided a complete copy of the warrant when it was executed.
This claim is without merit.
The Court has reviewed the application for search warrant, the search warrant, and other related documents. See Search Warrant Materials [d/e 1-2], pp. 14-38.
Law enforcement officers may use hearsay statements in affidavits for search warrants. See Jones v. United States, 362 U.S. 257, 271-72 (1960) ("We conclude therefore that hearsay may be the basis for a warrant.... as hearsay alone does not render an affidavit insufficient, the Commissioner need not have required the informants or their affidavits produced... so long as there was a substantial basis for crediting the hearsay") (overruled on other grounds); Rugendorf v. United States, 376 U.S. 528, 533 (1964); Franks v. Delaware, 438 U.S. 154, 165 (1978); United States v. Carmichael, 489 F.2d 983, 986 (7th Cir. 1973).
Faulds' overbreadth arguments are unpersuasive. It is not unreasonable for a magistrate judge to authorize a broad warrant under these circumstances.
The remaining arguments are unavailing.
Ground 6-Appellate Counsel was ineffective because she failed to raise on appeal remarks made by the prosecutor that were highly prejudicial
As detailed above, to prevail, Faulds would have to show that there is a reasonable probability that the outcome would have been different if the issue had been raised.
He cannot do so on this claim.
The Court has carefully reviewed the passages from the trial transcript cited by Faulds. See Motion [d/e 1], pp.38-39; Trial Transcript [d/e 65], pp. 93, 95, 96, 99, 100, 103.
Almost all of the allegedly prejudicial prosecutorial statements merely describe the evidence that would be presented at trial.
There were some statements that reflected conclusions. The prosecutor warned the jurors of the graphic nature of the evidence, saying "it probably will be the most vile things you will ever see." Trial Transcript at 95. He also characterized Faulds as "one of the promoters, salesmen of child pornography." Id. at 93. The evidence adduced at ...